The Mobile City Government Case: 1975-1982, 0316 ALBJ, 74 The Alabama Lawyer 95 (2016)
| Author | David A. Bagwell |
| Position | Vol. 74 1 Pg. 95 |
David A. Bagwell
"Executive Summary" [sic: are lawyers "executives " ?]
More than 40 years ago, in 1975, black plaintiffs filed suit in federal court in Mobile, claiming that the city commission form of government of Mobile, adopted in 1911 with three commissioners elected at-large, unconstitutionally operated to dilute the voting power of black voters. They cited Fifth Circuit precedent from two years before [as you know before 1981 we were in what we now call "the old Fifth Circuit"] suggesting that only a discriminatory effect was required to be proved, not a discriminatory intent. Just before trial, the Supreme Court decided Washington v. Davis, 426 U.S. 229 (1976), which seemed to me clearly to require proof of discriminatory intent rather than effect. After trial, on an effect basis rather than intent, Judge Virgil Pittman held that the at-large election feature of the commission form of government violated the Fourteenth and Fifteenth amendments. As a remedy, since the commission form would not work with single-member districts, he ordered a change in the form of government to a mayor-council form. Bolden v. City of Mobile, 423 F. Supp. 384 (S.D. Ala. 1976). The Fifth Circuit affirmed, Bolden v. City of Mobile, 571 F2d 239 (5th Cir. 1978). The U.S. Supreme Court reversed, and in a fiercely split opinion, City of Mobile v. Bolden, 446 U.S. 55 (1980), a plurality of the Court wrote that under the Fourteenth and Fifteenth amendments and Section 2 of the Voting Rights Act, a discriminatory effect was not enough to make out a case, but rather a discriminatory intent was required. Two years later, though, in 1982, Congress amended Section 2 of the Voting Rights Act to say specifically that a discriminatory effect was all that was required under the Act, which mooted the Constitutional issue in voting cases. The Supreme Court in Thornburg v. Gingles, 478 U.S. 30, 43-44 (1986) stated the current tests under Section 2.
The First Hundred Years: 1810-1911
For about 100 years, from the time that Mobile came into the United States as a part of the former Spanish West Florida [1810 to 1815 or so, depending on how you figure it] to 1911, Mobile almost always had a form of government which today we would call "Mayor/Council." There were many small changes, but that's essentially correct.
The Galveston Hurricane And the City Commission Form of Government
Galveston had a huge hurricane in 1900 which killed 6,000-12,000 people [usually averaged out as 8,000], discussed in the wonderful 1999 book Isaac's Storm, named after the weatherman who tried hard to predict it and warn people. http://en.wikipedia.org/wiki/Isaac_Cline
After the complete destruction of Galveston in the hurricane, the old mayor/council form of government was deemed insufficient to bring the city back, so to do that Galveston adopted the city commission form of government, under which there were three "commissioners," who assigned themselves executive duties, normally (1) finance, (2) public safety [police and fire] and (3) public services [utilities], and normally rotated the mostly-ceremonial mayor position. http://en.wiki
pedia.org/wiki/City_commission_ government The commission form of government became the darling of political scientists during the height of pro-gressivism in the 1900-1920 period, and De Moines, Iowa became the first city outside Texas to adopt it, and plenty of others did, too [now, Portland, Oregon, one of the most liberal cities in the U.S., is the last remaining big city to have a commission form, and in 2007 voted down an attempt to change it].
The Complete Elimination of Black Voters in Alabama: 1893-1901
During the populist revolt-era governor elections in Alabama in 1892 and 1894, the black belt planters who ran Alabama became terrified that black voters would make common cause with poor white populist voters, and outvote the planters' "Bourbon aristocracy" which, along with the L&N railroad, ran Alabama.
Between 1893, with the passage of The Sayre Election Law1 in Alabama [named for Judge Anthony D. Sayre, the father of Zelda Sayre, Mrs. F. Scott Fitzgerald], and 1901, with the passage of the Alabama Constitution of 1901, black voters were entirely eliminated in Alabama. This was the stated goal of the 1901 Constitution, according to what the chair of the Constitutional Convention of 1901 said from the chair at the beginning of the Convention, as reported in the PROCEEDINGS: "And what is it that we want to do? Why it is within the limits of the Federal Constitution, to establish white supremacy in this state?"2
And it worked. The foremost historian scholar of the Alabama Constitution of 1901, Dr. Malcolm McMillan of Auburn, wrote that, "The Constitution of 1901 eliminated the Negro voter."3 [It is also true, though irrelevant here, that, "Negroes were not the sole target of disfranchisement,"4 and that "[s]upposedly designed to disfranchise the Negro, the poll tax and other deterrents had disenfranchised more whites than Negroes."5 ]
Mobile's Adoption of The City Commission Form of Government In 1911, after Complete Disfranchisement of Blacks Had Occurred
In the first Bolden trial, when plaintiffs did not agree that proof of discriminatory intent was essential, plaintiff's expert historian agreed with defendants that Mobile's adoption of the commission form of government in 1911 was to clean up corruption and to eliminate the "Boss Tweed" "ward heeler" aspects of the alderman form of government and that "racial discrimination per se was not a motivating factor." Plaintiffs' witnesses Joe Langan and Robert Edington agreed.
Confusion about the Applicable Law, 1960s To 1975
We all remember that in Reynolds v Sims6 the Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment required numerical equality among legislative districts, and that in Gomillion v Lightfoot,7 they held that racial gerrymandering violated the Fifteenth Amendment.
Well, what about a "racial dilution" case, a claim that in large single-member districts blacks and other minorities are often outvoted by racial and other majorities? In the late 1960s and the early 1970s the Supreme Court had a few cases dealing with multimember districts, mostly in the legislative area and mostly dealing with the remedy phase, and it clearly did not like multimember districts. The courts weren't nearly as clear, though, as they ought to have been on the important question whether multimember districts were unconstitutional only upon proof of discriminatory intent, or whether on the other hand proof of discriminatory effect sufficed as proof of unconstitutionality. Some of the cases used the phrase "designedly or otherwise," which was less than clear. Justice Holmes wrote in THE COMMON LAW that "even a dog can distinguish between being tripped over and being kicked," but the cases in the 1960s and the 1970s seemed not to focus on the distinction between the two, sort of blindly blundering through without noticing the issue.
The old Fifth Circuit in Zimmer v. McKeithen, 485 F2d 1297 (5th Cir. l973)(en banc) adopted an effects test for racial dilution cases rather than an intent test. It was a very complicated test, involving so-called "primary factors" [lack of access, unresponsiveness, tenuous state policy, present effects from past discrimination] and so-called "enhancing factors" [large districts, majority vote requirement, anti-singleshot voting requirement, residence requirement]. In actual operation the test presented a nightmare. The Supreme Court had its chance back then but muffed it; the Supreme Court affirmed Zimmer but the affirmance was "without approval of the constitutional views expressed by the Court of Appeals," East Carroll Parish School Board v. Marshall, 424 U.S. 636, 638 (1976 )(per curiam), see Bolden note 16. So, in the Fifth Circuit we seemed stuck with the Zimmer factors and discriminatory effects as sufficient for unconstitutionality.
The year after Zimmer Judge Frank Johnson in the Middle District of Alabama-back then he was generally thought to be the gold standard for civil rights judges-decided Yelverton v. Driggers, 370 F Supp. 612 (M.D.Ala. 1974), a case against the City of Dothan's commission form of government, and he applied an effects test, and found that the commission form operated unconstitutionally. And, yet, on the remedy side, he declined to change the city's form of government to a single-member commission form or mayor-council, and instead gave the city a period of time in which to provide improved services to the black areas of town. He reasoned that if the black section of town had its own single-member...
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